Victimisation and dishonesty
The Employment Appeal Tribunal (EAT) has held in Saad v Southampton University Hospitals NHS Trust that a claimant has to have acted dishonestly for an allegation or evidence not to have protection from the victimisation provisions of the Equality Act 2010.
The claimant, who was a surgeon, had been engaged in a training programme to become a consultant. He was written to at the end of the training programme by the Training Programme Director who informed him that he did not feel able to recommend him for a pass, but for an award which would mean that he had failed his training. A couple of days later the claimant raised a grievance in relation to an alleged racist remark four years earlier in an attempt to have an assessment of his skills postponed. He then went on sick leave and was diagnosed with work-related stress. He never returned to work, and his fixed term contract expired a year or so later without being renewed. He brought claims for detriments for making a protected disclosure and victimisation, both arising from his grievance.
The tribunal dismissed his claims. Although it found that the claimant subjectively believed that his disclosure was true, it found that his belief had not been reasonable. The EAT disagreed. It held that in order for an employer to defeat a victimisation claim by demonstrating that there was no protected act on which the claim might rely, it will need to show that the evidence, information or allegation was false, and that the employee gave the evidence or information, or made the allegation, dishonestly. In this instance the claimant honestly believed the allegation to be true, and this belief was genuine, although it did not alter the fact that he might have had an ulterior purpose in raising the allegation.
Take note: Following the decision in Saad it is clear that for an employer to defeat a victimisation claim, it will have to show not only that the information, allegation or evidence relied on is false, but also that the individual acted dishonestly at the time in making or giving it.
This article is taken from HR Law - September 2018.